| Poplaski v City of New York |
| 2014 NY Slip Op 00186 [113 AD3d 449] |
| January 14, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| David Poplaski, Plaintiff, v City of New York et al., Defendants. Consolidated Edison Co. of New York, Inc., Third-Party Plaintiff-Respondent, v Nico Asphalt, Inc., Third-Party Defendant-Appellant-Respondent, and Triumph Construction Corp., Third-Party Defendant-Respondent-Appellant. (And a Fourth-Party Action.) |
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Rubin Fiorella & Friedman LLP, New York (Jeff R. Thomas of counsel), for
respondent-appellant.
Stephen T. Brewi, New York, for respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 23, 2013, which denied third-party defendants' motions for summary judgment dismissing the complaint and all cross claims as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the third-party complaint.
The third-party defendants, a re-grading contractor and a re-paving contractor, established prima facie that the work they performed did not cause or create the defect that plaintiff claims caused his accident (see Jones v Consolidated Edison Co. of N.Y., Inc., 95 AD3d [*2]659 [1st Dept 2012]). Con Edison has failed to raise an issue about a height differential between its grate and the surrounding roadway that allegedly caused the rear wheel of plaintiff's scooter to lose traction. Concur—Sweeny, J.P., Renwick, Andrias, Freedman and Feinman, JJ. [Prior Case History: 2013 NY Slip Op 30107(U).]